Criminal Justice Process

Upon conviction, whether by plea or after a trial, the trial court imposes the sentence upon the offender. Many states still follow the traditional practice that allows the trial judge discretion to impose any sentence authorized by the statute, from the minimum to the maximum. The court's decision is usually informed by a presentence report prepared by agents of the correctional system. Both the government and the defense may recommend a sentence. Although legally the court is not required to accept a prosecutor's recommendation for a reduced sentence, judges know that disregarding such recommendations could impair the incentives for defendants to plead guilty. Purely discretionary sentencing systems have been widely criticized for treating defendants convicted of similar offenses more or less seriously based on arbitrary factors such as the ideology of the judge.

In 1984 Congress adopted legislation creating the Federal Sentencing Commission and authorizing the commission to promulgate sentencing guidelines for federal courts. The guidelines promulgated by the commission specify a recommended sentence based on the seriousness of the offense and the defendant's prior record. Factors such as post-crime cooperation with the prosecution may reduce the recommended sentence, and other factors such as the use of a weapon during the offense may increase the recommended sentence. The sentencing judge is authorized to depart from the recommended sentence, but must give reasons for doing so, and departures may be challenged on appeal by both the government and the defense. The federal guidelines have been criticized, especially by federal district judges, as unduly rigid.

Many states have taken a middle position between the traditional discretionary system and the more rigid federal guidelines by adopting nonbinding sentencing guidelines. These system vary widely, but their common aim is to reduce sentencing disparities without forcing sentencing judges into a result that may not fit the facts of the particular case.

Many but not all American jurisdictions authorize the death penalty for murder. The Supreme Court has held that capital punishment systems that give juries unguided discretion to impose the death sentence violate the Eighth Amendment's prohibition of cruel and unusual punishments. The Court also has struck down mandatory death penalty statutes for such crimes as the murder of a police officer or a murder committed by a prisoner serving a life sentence. The Court has held that the death penalty is inherently unconstitutional for the crime of raping an adult.

With respect to murder, the Court has upheld statutory schemes that require the sentencing jury to find the presence of statutorily defined aggravating factors, and to balance the aggravating factors against any mitigating factors that may be present in each case before imposing the death sentence. Typical death penalty statutes provide for a bifurcated trial. The sentencing issue will not be considered until the issue of guilt and innocence is tried. If the jury convicts at the guilt phase, the trial will enter a second, penalty phase, during which both sides may offer evidence that was not introduced during the guilt phase.

Whether the Supreme Court really has succeeded in reducing arbitrary decisions about capital punishment is open to question. Juries cannot impose the death penalty unless prosecutors ask for it, and the Court has not imposed any limitations on prosecutorial discretion to seek the death penalty. Moreover, by allowing defendants to introduce evidence of any relevant mitigating circumstance, whether authorized by statute or not, the Court effectively has tolerated very wide jury discretion in death penalty cases. Although some Justices of the Supreme Court have taken the view that the death penalty is inherently cruel and unusual, no Justice on the Court in early 2001 professes that opinion.

A convicted defendant who has exhausted the appeals process may still challenge the conviction by filing a petition for habeas corpus. Habeas corpus is an original civil action challenging the legality of detention. The criminal defendant becomes the civil plaintiff, and the warden or jailer becomes the civil defendant. The Supreme Court has taken an increasingly narrow view of when state prisoners may obtain habeas corpus review in federal court, and in 1996 Congress adopted legislation codifying and in some respects tightening the limitations recognized by the Court.